Holding

The Supreme Court held that the plaintiff‑appellants failed to discharge the burden of proving title under Sections 101 and 102 of the Evidence Act, and that the High Court correctly framed and answered the substantial questions of law under Section 100 CPC, thereby affirming the dismissal of the appeal.

Summary

The plaintiff filed a suit seeking a declaration that she owned one‑third of a suit‑schedule property (land registration No. 16413) and the cancellation of the defendants' registration. The defendants denied her claim, alleging prescription and asserting that the property had been transferred to them by auction. The trial court and the first appellate court decreed in favour of the plaintiff despite the absence of any documentary title. The defendants appealed, and the High Court framed substantial questions of law under Section 100 CPC, holding that the plaintiff had not produced any title document and that the lower courts had erred in assuming an admission of her claim and ignoring the defendants' denial. The Supreme Court affirmed that the plaintiff bore the burden of proving ownership under Sections 101 and 102 of the Evidence Act, that the High Court correctly exercised its power to set aside the lower courts' findings, and dismissed the appeal.

Issues considered

Whether a plaintiff who does not produce any document of title can be granted a decree of declaration of ownership.
Whether the lower courts erred in assuming an admission of the plaintiff’s claim and ignored the defendants’ specific denial.
Whether the burden of proof under Sections 101 and 102 of the Evidence Act lies on the plaintiff in a suit for declaration of title.
Whether the High Court was justified in exercising its power under Section 100 of the CPC to set aside the concurrent findings of fact of the lower courts.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 526
Indian Evidence Act, 1872s. 101, s. 102

Subjects

burden of prooftitle of propertyEvidence Act 1872CPC Section 100substantial question of lawprescriptiononus of proofdeclaration of ownershipproperty dispute

Judgment

[2013] 11 S.C.R. 1076

A SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS.
& ORS.
v.
K.V.P. SHASTRI (DEAD) THROUGH LRS. & ORS.
(Civil Appeal No. 6183 of 2001)
B
DECEMBER 10, 2013.
[G.5. SINGHVI, V. GOPALA GOWDA AND
C. NAGAPPAN, JJ.]

C Evidence Act, 1872:

ss.101 and 102 - Burden of proof - Suit for declaration
that plaintiff was owner and in possession of 113rd of suit
property- Held: It was upon plaintiff-appellants to furnish proof
D regarding ownership of 1/3rd share of suit property and
discharge their burden ofproofas per ss. 101 and 102 - It
was primarily and essentially necessary for plaintiff-appellants
to establish their claim of ownership before they could invite
the court to address itself to the issue of their challenge to title
of defendants-respondents to suit properly - Plaintiff-
E appellants having failed to do so, their entire claim was liable
to be rejected - Trial court and first appellate court erred in
assuming certain facts, which are not in existence, to come
to erroneous conclusion in the absence of title document in
justification of claim of plaintiff and ignored the pleadings of
F defendants though they have specifically denied ownership
right claimed by plaintiff in respect of suit property.

Code of Civil Procedure, 1908:

G s. 100 - High Court framing substantial questions of law
and while answering the same in favour of defendants, setting
aside concurrent findings of both the courts below - Held: High
Court has rightly come to the conclusion that substantial
questions of law were to be answered in the negative, holding
H 1076
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1077
KVP. SHASTRI (DEAD) THR. LRS.
that since plaintiff-appellants have not produced any A
document of title in relation to suit property, grant of decree
. in their favour is erroneous in. law - Substantial questions of
law framed by High Court at the _time of admission of second
appeal is based on law laid down by Supreme Court -
Therefore, High Court was justified in recording cogent and B
.valid reasons to annul the concurrent findings of courts below
and in holding that non-appreciation of pleadings and
· evidence on record by courts below rendered their finding on
the contentious issues/points as perverse and arbitrary, and,
therefore, the same have been rightly set aside by High Court c
by answering the substantial questions of law in favour of
defendants - There is, therefore, no reason to interfere with
the judgment and decree passed by High Court.

In a suit by plaintiff for declaration that she was
lawful owner and in possession of 1/3 of the suit property D
and consequential relief of cancellation of registration in
favour of defendants-respondents in respect of 1/3 share
in suit scheduled property, defendant no. 1 claimed to
have acquired right by way of prescription and defendant
no. 2 also denied title of the plaintiff and claimed to be in E
possession pursuant to conveyance thereof by
defendant no. 1. The trial court decreed the suit, holding
that the alleged. prescription would not operate because
defendant-1 was never in the possession of the property,
much less in good faith. It was also observed that it was F
proved from the proceedings by a fact otherwise
admitted that the plaintiff had her residential house in the
suit schedule property with a common wall with the
house of the defendant and this was one more important
fact to corroborate the case of the plaintiff, for being G
relatives. descending from the same common trunk
having ancestral house. The first appeal filed by the
defendant was disposed of holding that the trial judge
rightly pointed out that the specific claim made by the
plaintiff with~ regard to the common ownership to the suit H
1078 SUPREME COURT REPORTS (2013] 11 S.C.R.

A schedule property and the houses was not specifically
denied by the defendants. The defendants filed a second
appeal and the single Judge of the High Court framed the
substantial questions of law: namely (i) The plaintiffs not
having produced any document of title, could the courts
B below decree the suit? (ii) The decision was contrary to
the pleadings and the courts below committed breach of
procedure in holding that there was admission of original
plaintiff, in the pleading when there was no such
admission; and (iii) the courts below failed to consider
c that the defendants had pleaded prescription and that
Article 526(2) was fully attracted. The High Court
answered the substantial questions of law Nos. 1 and 2
in favour of the defendants holding the findings of the
courts below on the relevant contentious issues as
perverse.
0
Dismissing the appeal, the Court
. HELD: 1.1. As regards substantial questions of law
Nos. 1 and 2 framed and answered in favour of the
E defendants-respondents and against the plaintiff.
appellants, the High Court has rightly held to the effect
that it was primarily and essentially necessary for the
plaintiff-appellants to establish their claim of ownership
before they could invite the court to address itself to the
F issue of their challenge to the title of the defendants-
respondents to the suit schedule property. The plaintiff-
appellants having failed to do so, their entire claim was
liable to be rejected. The High Court further recorded the
finding, that the factum of registration of the suit schedule
property under No.16413 in favour of the defendants-
G respondents is not in dispute, yet the plaintiff-appellants
have not produced on the record any document of
inscription of the suit schedule property in their name.
Therefore, the High Court has rightly come to the
conclusion that the first substantial question of law was
H
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1079
K.VP. SHASTRI (DEAD) THR. LRS.

to be answered in the negative, holding that since A
plaintiff-appellants have not produced any document of
title in relation to the suit schedule property, the grant of
decree in their favour is erroneous in law. [para 21] [1095-
E-H; 1096-A-B]
B
1.2. On the second substantial question of law, the
High Court has rightly answered in favour of the
defendants in the affirmative for the reason that the courts
below, without considering the denial made by defendant
no.1 with regard to the ownership claim made by the C
plaintiff-appellants in respect of the suit schedule
property, have come to the erroneous conclusion that
there is no pleading of fact by the defendants-
respondents and lack of evidence in favour of the
plaintiff-appellants to prove their title to the suit schedule
property. Therefore, the High Court has arrived at the D
right conclusion and held that the courts below
committed serious error in holding that there was
admission of defendants in the pleadings with respect to
ownership of 1/3rd of the suit schedule property by the
plaintiff. [para 21] [1096-C-E] E

1.3. The ratio laid down by this Court in Hira Lal's
case and other decisions is applicable to the fact situation
of the instant case as the courts below have erred in
assuming certain facts, which are not in existence, to F
come to the erroneous conclusion in the absence of title
document in justification of the claim of the plaintiff in
respect of the suit schedule property and ignored the
pleadings of the defendants though they have
specifically denied the ownership right claimed by the G
plflintiff in respect of the suit schedule property and on
wrong assumption of the facts which are pleaded on the
'contentious issues, they have been answered in favour
df the plaintiff, therefore, the High Court has rightly
exercised its appellate jurisdiction by framing the correct H
1080 SUPREME COURT REPORTS [2013] 11 S.C.R.

A substantial questions of law with reference to the legal
position and applied the same to the fact situation of case
on hand. [para 22]
Hira Lal and Anr. v. Gajjan and Ors. 1990 (1) SCR 164 =
8 (1990) 3 sec 285 - relied on.
1.4. In the considered view of this Court, the
substantial questions of law framed by the High Court at
the time of the admission of the second appeal are based
on law laid down by this Court in the case of Hira Lal
C which view is supported by other cases. Therefore,
answer to the said substantial questions of law by the
High Court by recording cogent and valid reasons to
annul the concurrent findings that the non-appreciation
of the pleadings and evidence on record by the courts
D below rendered their finding on the contentious issues/
points as perverse and arbitrary, and, therefore, the same
have been rightly set aside by answering the substantial
questions of law in favour of the defendants. [para 23]
[1097-C-D]
E
1.5. The High Court has framed substantial questions
of law as per s.100 of the CPC, and. there is no error in
the judgment of the High Court in this regard and
therefore, there is no need for this Court to interfere with
F the same. [para 24] [1099-A]
Hero Vinoth (minor) v. Seshammal 2006 (2) Suppl.
=
SCR 79 2006 (5) sec 545 - relied on. ·
1.6. In the matter of onus of proof and burden of
G proof as per ss.101 and 102 of the Evidence Act, this
Court holds that it was upon the plaintiff-appellants to
furnish proof regarding ownership of 1/3rd share of the
suit schedule property and discharge their burden of
proof as per the said two sections. 'Therefore, there is no
H reason whatsoever to interfere with the impugned
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1081
K.V.P. SHASTRI (DEAD) THR. LRS.

judgment and decree passed by the High Court on this A
aspect of the case as well. [para 25] [1099-8-C; 1100-E]

Corporation of City of Ban.galore v. Zulekha Bi & Ors.
2008 (5) SCR 325 =2008 (11) SCC 306; Gurunath Manohar
Pavaskar & Ors. v. Nagesh Siddappa Navalgund & Ors. 2007 8
(13) SCR 77 = 2007 (13) SCC 565 and Anil Rishi v. Gurbaksh
Singh 2006 (1) Suppl. SCR659 = (2006) 5 sec 558 -
referred to.

Deity Pattabhiramaswamy v. S. Hanymayya & Ors. AIR
1959 SC 57, Dollar Company, Madras v. Collector of Madras c
1975 Suppl. SCR 403=1975 (2) SCC 730; and Ramanuja
Naidu v. V. Kanniah Naidu & Anr. 1996 (3) SCR 239 =
(1996)3 SCC 392; Jeevan Diesels & Electricals Ltd. v. Jasbir
Singh Chadha, (HUF) & Anr. 2010 (6) SCR 546 = 2010 (6)
SCC 601; Rachakonda ·Venkat Rao & Ors. v. R. Satya Bai D
& Anr. 2003 (3) Suppl. SCR 629 =2003(7) SCC 452 - cited.

Case Law Reference:
1990 (1) SCR 164 relied on para 7
AIR 1959 SC 57 E
cited para 9
1975 (0) Suppl. SCR 403 cited para 9
1996 (3) SCR 239 cited para 9
2008 (5) SCR 325 referred to para 16 F
2007 (13) SCR 77 referred to para 16
2006 (1) Suppl. SCR 659 referred to para 16
2010 (6) SCR 546 cited para 18
2003 (3) Suppl. SCR 629 cited para 18 G

2006 (2) Suppl. SCR 79 relied on para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6183 of 2001.
H
1082 SUPREME COURT REPORTS (2013] 11 S.C.R.

A From the Judgment & Order dated 14.09.1998 of the High
Court of Bombay Bench at Goa in Second Appeal No. 30 of
1986.

Shreyans Singhvi, Umnao Singh Rawat, V.D. Khanna for
B the Appellants.

Yashraj Singh Deora, Anupama Dhurve, M.P. Jha for the
Respondents.

The Judgment of the Court was delivered by
c V. GOPALA GOWDA, J. 1. This civil appeal is filed by the
appellants as they are aggrieved by the judgment and decree
of the High Court of Bombay at Goa passed on 14.9.1998 by
the learned single Judge in Second Appeal No. 30 of 1986
raising various questions of law and grounds in support of the
D same. In this judgment for the sake of convenience the rank of
the parties is described according to their position before the
trial court. The appellants are the legal representatives of the
plaintiff and the respondents are the legal representatives of
the defendants. The suit was instituted by the original plaintiff
E in the Court of Civil Judge, Sr. Division at Quepem {hereinafter
referred to as "the trial court") in Civil Suit No.14091 of 1948.

2. The relevant brief facts are stated for the purpose of
appreciating the rival legal contentions with a view to examine
F and find out as to whether the impugned judgment of the High
Court of Bombay warrants interference by this Court in this
appeal in exercise of its jurisdiction under Article 136 of the
Constitution of India. ·

The original plaintiff, lnacinha Fernandes filed Civil Suit No.
G 14091 of 1948 on 1.1.1948 before the trial court for declaration
that she is the lawful owner in possession of 1/3rd of the
property bearing land registratiol'l No.16413 and consequential
relief for cancellation of registration in favour of the defendants-
respondents in respect of such 1/3rd share in the suit schedule
H property and to register the same in the name of th~ plaintiff.
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1083
K.V.P. SHASTRI (DEAD) THR. LRS. [V. GOPALA GOWDA, J.]

Presently the legal representatives of the original plaintiff are A
before us as appellants. It is the case of the plaintiff-appellants
that suit schedule property is bearing land registration No.16413
and the claim ofthe plaintiff-appellants is that it belonged to
three brothers namely, Francisco Fernandes (who was the
father-in-law of the original plaintiff), Francisco Fernandes junior B
and Pedro Sebastiao Fernandes and they owned and
possessed the same jointly and in equal shares. The defendant
No. 2-Tereza is the daughter of Francisco Fernandes junior and
the original plaintiff-lnacinha Fernandes is the wife of Luis
Fernandes, the son of Francisco Fernandes, the first brother. c
It is their further case that on the death of Francisco Fernandes,
he was survived by the husband of the original plaintiff. It is their
case that on the death of said Francisco Fernandes, the 1/3rd
share of the suit schedule property devolved upon Luis the late
husband of the original plaintiff and it was accordingly enjoyed 0
by the plaintiff. Further case of the plaintiff is that on account of
a debt of Rs.198/- to one Naraina Panduronga Porobo, the
property was attached and thereafter the liability was paid by
way of subrogation of rights iri favour of the father of the first
defendant, K.V.P. Shastri who bought this property which was·
sold in public auction on 26th April, 1935 and thereafter E
granted aforementioned property in favour of the husband of
Tereza, namely, Tomas Fernandes vide perpetual lease. It is
the case of the plaintiff that the right of subrogation in favour of
the father of the first defendant should have been granted by
the defendant No.2-Tereza only in respect of 1/3rd share and F
not in relation to the entire property.

3. The case of the plaintiff was sought to be contested by
the defendant No.1 inter a/ia contending that the claim of the
plaintiff is false and ownership and possession of the suit G
schedule property stands transferred in favour of the defendant
No.1 with effect from 26.4.1935 and he had acquired right by
way of prescription as it has been enjoyed for 10 years,
pursuant to the registration of the suit schedule property in his
name. The defendant No.2 also denied the case of the plaintiff H
1084 SUPREME COURT REPORTS (2013] 11 S.C.R.

A and claimed to be in possession pursuant to conveyance
thereof by the defendant No.1.

4. On the basis of the pleadings of the parties issues were
framed and the matter went for trial and both the parties
adduced evidence. On appreciation of evidence on record the
8
trial court decreed the suit vide its judgment dated 29.4.1978. ·
The trial court decreed the suit holding it to be tenable and
directed the defendants to acknowledge that the plaintiff along
with her children is the lawful owner in possession of 1/3rd
share of the suit schedule property and to release that 1/3rd
C share in favour of the plaintiff, by declaring to be null and void
the inscription .done in the Land Registration Office in respect
to the said property which is described under No. 16413 in so
far as it covered the 1/3rd part of the plaintiff. Further, the
defendants were directed to pay damages caused to the
D original plaintiff by depriving her of the income corresponding
to her 1/3rd portion. The trial court held that the alleged
prescription does not operate because the defendant Shastri
was never in the possession of the property, much less in good
faith. It was also observed that it is proved from the proceedings
E by a fact otherwise admitted that the plaintiff has her residential
hou$e in the suit schedule property with a common wall with
the house of the defendant-Tereza 'and this is one more
important fact to corroborate the case of the plaintiff, for being
relatives descending from the same common trunk having
F ancestral house.

5. Being aggrieved by the said judgment and decree the
defendants preferred Civil Appeal No. 237 of 1981 before the
District Court at Margao and the same was disposed of by
G judgment dated 16.12.1985 by recording reasons. The first
appellate court held that the evidence on record shows that
neither the original plaintiff nor the original defendants were able
to produce any documentary evidence to support their title to
the suit schedule property, besides the claim made by them that
the property was acquired from the common ancestors. Further,
H
/

. SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1085
K V.P. SHASTRI' - (DEAD)
. -'. . . .
THR "'LRS. [\/. GOPALA
- . . .-. .
GOWDA,
·..... , -
:
J.] , -, ': '·

' . . . . . ·. . . . . . '! .
it observed that the learned.trialjudge rightly pointed out that ·A
the specific claim· made" by the plaintiff with regard to the
common ownership toJhe suit schedule property andthe
houses wasnot specificallyderiied by the'defendants'being a
fact that only defendant No:t'riamely, Venctexa 'Govinda
Porobo Shastri took a definite standiri this'resj:JeCt.lt Was thus B
. held, thattllinn.al
- .. '
Judge was
. . . . . +-:-- --- _.-_.,,
justified
,-_
.~. ,.,_.
iri tioldirig -that
' - : ,,,._.
the common
,•, _._. ··, .-- - .
ownership of the suit schedule propertY had been admitted by
the defendaiitS in thefr Written statement arid that they could riot
prove how the suifschedule propertY in view of thisf~ct this
. common ownership could subsequently belong exCliJsively to c
the daughters of cine'of the co~owners•ofthe suit schedule
property who were the heir$ "()f()ne "of the saris of the original
title holder of the j:Jropert}'O:FIJrther;"the'circumstances of Terei:a
· and Conceicao having acquired their right through"the creditor
Shastri who purchased their property in a public auction after
0
its attachment by the court from the heirs.of one.of the co-
ownera are eertainl{not binding a·n the resporicientswho were
not pa_r:ties in the said proeeedings being alsc;ia f~ct that ~imply
because the originai plaintiff did not react either against the
attachment or the auction; it cannot be said that~this
circumstance niade 'Iler IOse her~rightofthe share.acquired by . E
• •. ' • • - ' ·- • - ~- . •< • - . ~- • • • , , •I . ' . ". . -- . • . : I -• '

her husband through his father who was one of the sons of.the
original·~~Yl.~er"of .l~e. sui(sqtledul~· property.'B~si~e~·;,t~e.
evidence on record shows .that the .original plaintiff arid her
family were'residing in theJiouse situated in ,the'suifschedlJle
property''
,;·--",
even
.. ·-.- - .,aLthe
... - ..·time' ... ofttie
_ -- -,,,'
,.,
filing
.
o'ffhe
- •···· ..
'suit
-':··
;arid
... - - _, _;.
F
subsequently. they shifted their residence after their ancestral
house coirapsecl, l1avin9 b'uilt ariottiet house. ~I· different rri
property which· !lad been acquired by the pfaintiff: It flirttier was
held by the firat_ appellate court that the. trial Judg"e has correCtly
assessed the evideric:e.~ on;recoril'while adjudicating the' rights G
of the' parties to' the suifin' favour'o(the''plaintif(arid the
,judgment 'could;not tiesaid'as h'avirig caused any grievance
to the defendants-respondents
1-''.·' ,_, ,._ ..,... '· -· . . . . .
_i~·-
and' must be fully affim\ed.
.••· ,., . ·:-
··.:.~ "
~--·,.:·-···,·
"
-- .:; :" -~
. . . - . -
6. Being aggrieved by the said judgment Second Appeal H
1086 SUPREME COURT REPORTS [2013] 11 S.C.R.

A No. 30 of 1986 was filed by the defendants before the learned
single Judge of the High Court by urging certain substantial
questions of law as required under Section 100 of the Civil
Procedure Code, 1908 (for short "the CPC"). The High Court
admitted the appeal by framing the following substantial
B questions of law :-

(1) The plaintiffs not having produced any document of
title, could the courts below decree the suit?

(2) The decision is contrary to the pleadings. The
c courts below committed breach of procedure in
holding that there was admission of original
plaintiff, in the pleading when there is no such
admission.

D (3) The courts below failed to consider that the
defendants had pleaded prescription and that
Article 526(2) was fully attracted.

7. After hearing the learned counsel for the parties and the
translated pleadings from Portuguese language to English in
E the plaint with regard to the claim of ownership of the plaintiff
and the pleadings of defendants, the learned single Judge of
the High Court has examined the rival legal contentions urged
with reference to the substantial questions of law framed by it
at the time of admission of the second appeal and placed
F reliance upon the judgment of this Court in the case of Hira Lal
and Anr. v. Gajjan and Ors. 1 wherein this Court laid down the
statement of law,regarding the substantial questions of law in
the second appeal under Section 100 of the CPC. The relevant
portion of paragraph 8 from the aforesaid judgment reads thus:-
G
"8 .... if in dealing with a question of fact that the lower
appellate court has placed the onus on wrong party and
its finding of fact is the result substantially of this wrong
approach that may be regarded as a defect in procedure.
H 1. (1990) 3 sec 2s5.
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1087
K.V.P. SHASTRI (DEAD) THR. LRS. [V. GOPALA GOWDA, J.]

When the first appellate court discarded the evidence as A
inadmissible and the High Court is satisfied that the
evidence was admissible that may introduce an error or
defect in procedure. So also in a case where the court
below ignored the weight of evidence and allowed the
judgment to be influenced by inconsequential matters, the B
High Court would be justified in reappreciating the
evidence and coming to its own independent decision."

With reference to the statement of law laid down by this
Court in the. aforesaid case, the learned single Judge of the C
High Court proceeded to answer the substantial questions of
law Nos. t and 2 together by recording its reasons in
paragraphs 7, 8 and 9 of the impugned judgment. In the second
appeal, the High Court on the basis of the statement of law laid
down by this Court in Hira Lal case (supra) examined the
correctness of the concurrent findings of fact recorded by the D
first appellate court to answer the substantial questions of law
referred to supra. The High Court has re-appreciated the
evidence in the backdrop of the statement of law laid down by
this Court after noticing the fact that the courts below ignored
the pleadings of the defendants-respondents and the weight of E
their evidence and allowed its judgments to be influenced by
inconsequential matters, therefore, the High Court was of the
view that it is justified in re-appreciating the evidence and
coming to its independent decision and answered the
substantial questions of law Nos. 1 and 2 in favour of the F
defendants holding the findings of the courts below on the
relevant contentious issues as perverse. In this regard, at
paragraph 7, the High Court considered the evidence on record
and non-appreciation of the same by the courts below,
particularly, the finding recorded by the first appellate court that G
the plaintiff-appellants have established their title in respect of
the suit schedule property, that the defendant Shastri had not
denied the claim of ownership of the plaintiff-appellants and
further that there is no specific denial of the ownership by
Tereza, holding that the lower courts have erroneously recorded H
1088 SUPREME COURT REPORTS [2013] 11 S.C.R.

A findings on these aspects. The High Court has further
proceeded to hold. that the fact rernains th.at Tereza is not
claiming right independently herself but her claim to the property
is through said Shastri. The case of the defendants before the
trial court is that the said property was purchased by Shastri in
B a court auction and subsequently conveyed to Tereza.
Therefore, the case of the defendants was accepted by the
High Court stating thatthe pleading of K.V.P. Shastri in relation
to the denial of ownership of the plaintiff is more relevant and
material rather than that of Tereza. The High Court further made
c observation that denial of Tereza without there being any such
denial by Shastri would have been of no consequence because
consequent to the auction to the property through court, Tereza
is claiming right to the property only through Shastri and not
independently. Therefore, the High Court has arrived at valid
finding on this aspect Of the matter that irrespective of the
0
denial of such claim of Tereza, had Shastri accepted the claim
of
of the plaintiff then such denial Tereza would have been of
no consequence in the facts and Circumstances of the case.
The High Court has arrived at a conclusion on the basis of
pleadings that undisputedly Shastri· ti as denied the claim of the
E ownership of the plaintiff-appellants in respect of the suit
schedule property, therefore, the. findings of both the courts
below that there is no denial of the plaintiffs case regarding
the ownership right of the suit schedule property is not factually
correct and the said finding is held to be totally contrary to the
F record and the same is arbitrary and perverse and cannot be
sustained. The High Court has als.o come to t~e cqnclusion on
the basis of the pleading& on record that-the claim of the
plaintiff-appellants to the suit. sche<;iule property is clearly in
dispute and plaintiff-appellants have not proved their title to the
G suit schedule property and furtherrightly came to the conclusion
that the courts below have not. properly ;analyzed the material
evidence on record though plaintiff-appellants have failed to
produce documentary evidence in so far as the title of their
ownership of the suit schedule property is concerned and
H further the finding recorded by the High Court in its judgment
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1089
K.V.P. SHASTRI (DEAD) THR. LRS. [V GOPALA GOWDA, J.]

at para 8 namely, to the effect that the challenge of the plaintiff A
with regard to the acquisition of his right to the suit schedule
property by Shastri and Tereza is essentially and solely based
on the basis of. the claim ofownership of the plaintiff to the suit
schedule property.
B
8. The learned counsel for the plaintiff-appellants has
submitted their legal and factual contentions before us. It was
contended that the High Court failed to appreciate that under
Section 100 of the CPC, only a substantial question of law could
be framed for the purposes of examining the contentions of
parties and that a substantial question of law is distinctly C
different from a substantial question of fact.

9. Further the learned counsel contended that the High
Court failed to advert to the fact thatpossession ofthe ancestral
property continued with the original plaintiff. It was contended D
that the High Court should have considered the fact that the two
fact-finding courts had come to the conclusion on fact that the
deceased-plaintiff was in possession of the suit schedule
property as a co-owner thereof, as 1/3rd of the suit schedule
property belonged to her father-in-law Francisco Fernandes. It E
is submitted that the learned single Judge of the High Court has
misread the evidence and pleadings in arriving at the impugned
findings. The learned counsel for the plaintiff-appellants has
relied on the judgments of this Court in Deity
Pattabhiramaswamy v. S. Hanymayya & Ors. 2 , Dollar F
Company, Madras v. Collector of Madras3 and Ramanuja
Naidu v. V. Kanniah Naidu & Anr. 4 to support the contention
that in the facts and circumstances of the present appeal the
High Court has tried to re-appreciate the evidence in second
appeal under Section 100 of the CPC which cannot be done G
in the second appeal, in the backdrop of the concurrent finding

2. AIR 1959 SC 57.
3. (1975) 2 sec 730.
4. (1996) 3 sec 392. H
1090 SUPREME COURT REPORTS [2013] 11 S.C.R.

A of facts by the lower courts on appreciation of pleadings and
evidence on record.

10. It is further contended by the learned counsel that the
High Court failed to appreciate that defendant-Tereza was not
claiming rights independently and her claim to the suit schedule
8
property is through the said Shastri, when on the contrary, the
purported right and interest of Shastri was in view of a purported
public auction of the property held to recover the debts of the
said Tereza and by an illegal means the said Tereza obtained
C a perpetual lease of the suit schedule property in her favour
from the said Shastri.

11. It was further contended that there was no question of
selling the entire property in the public auction in pursuance to
court decree when the rights of the said Tereza was only to the
D extent of 1/3rd of the entire property and the purported
·attachment of the same is null and void and without any legal
effect.

12. The learned counsel has also drawn our attention
E towards the three points, which arise for consideration by this
Court:-

(1) In the absence of documentary proof, whether oral
evidence can be relied upon for granting a decree
declaring the rights of a party?
F
(2) Whether the High Court in a Second Appeal should set-
aside concurrent findings of fact upon re-appreciating
evidence?

.(3) Whether improper admission or rejection of evidence
G can be a ground for new trial or reversal of any decision
in any case?

13. He has further submitted that it is manifest that a court
is empowered to grant a decree of declaration of title on the
H basis of only oral evidence and further submitted that this Court
SEBASTIAO LUIS FERNANDES (DEAD) THROUGH LRS. v. 1091
K.VP. SHASTRI (DEAD) THR. LRS. [V. GOPALA GOWDA, J.]
has settled the scope, limitation of jurisdiction and power of a A
second appellate court under Section 100 of the CPC
specifically after the amendment in 1976. This Court has held
that in proceedings under Section 100 of the Code, power to
set aside concurrent finding of fact can .be exercised only when
a substantial question of law exists irrespective of the fact that B
the finding of fact is erroneous.

14. The learned counsel has also stated that the Indian
Evidence Act, 1872 creates a specific bar against conducting
a new. trial merely on the ground of improper admission or C
rejection of evidence and that Section 167 of the Indian
Evidence Act is specific in this behalf.

. 15. On the contrary, the learned counsel for the defendants-
respondents contended that the present appeal is
misconceived and deserves to be dismissed as the High Court D
has rightly exercised its jurisdiction under Section 100 of the
CPC. It is evident from the extracts of the findings of the courts
below that the courts below have proceeded on the basis that
there is an admission of the claim of the plaintiff regarding 1/
3rd ownership of the suit schedule property as the same has E
not been specifically denied by the respondents. The said
finding is not only contrary to the pleadings on record but is also
contrary to the well-established principles of law viz. (a) that the
burden of proof is upon the person who approaches the court,
and (b} any averment to be taken as an admission must be clear F
and unambiguous. It is submitted that it is an admitted fact that
the plaintiff-appellants could not produce any document before
the trial court to prove their title regarding the suit schedule
property.

16. It was further contended by the learned counsel that G
, Sections 101 and 102 of Evidence Act clearly states that
burden of proof lies on the person who desires the court to give
a judgment on a legal right or liability and who would otherwise
fail if no evidence was given on either side. In the present case
the plaintiffs-appellants would have to satisfy that burden under H
1092 SUPREME COURT REPORTS · [2013] 11 S.C.R.. SEBASTIAO LUIS FERNANDES {DEAD) THROUGH LRS. v. 1093
t '~ ;"., ~ :-_: ("'-. j '. ··:·.•' ·: '-'. ( l·· K. V.P. SHASTRI
. . . (DEAD)
.
THR.
'.. LRS. [\/.
. GOPALA
. . . .
GOWDA,
. - J,] ' ', ' ' .' - '

A the above said sections of the Evidence Act, failing which the c
In answer to the said pleadings the defendant No.1 the A
suit would be liable .to be dismissed; In this.regard, defendants ·.· ' predecessor . . of, the
- ...• appellant
. . . oo.1 . "•'" stated
,_ .. ' thus:.,.
•' ...... ". ' ' '' '

·placed reliance on the.judgments of this Court in;Corpora~ion. t"',.-.. -·-:·... ;.,• ....~1~ ~~ ~.-.· ~-;.·
• - ' c • - \
:.:~_; '.;.\·::~·"'··\·
.. ;- ~ ..:· ~~-.·,' .. ;: .. , .. . ..... ;;,·; ... :..

ofCity pf Bangalore,• v. Zu~ek/)a Bi & Ors,, S,Gynmath. Mf!riohar ' -
. . . 'The· plaintiff her husband Luis or i('-i·
: ' -, ' ';• .-· ·-~- ... •. . ,.-
the father
., 1-:_ ,.......
of
. . :•
• .. ,- .. ·
this .. .,._ ..... ~ ~

· · · · . Francisco Fernandes· Senior' never held in
Pavas/(.ar:~ ..Ors.y. NageslJ,Siddapp~ Nava/gµnd ~ prs,~ ~nd I I. t • ' 1> • ; l ' ' ' ~· ." ~ .·, · , • · , ,

B Anil Rishiy., Gurba/(.sh Singh,~. wherein i~ has beer;specificaUy ., , _,.,.. . po~s~ssi~n .~he 1?,l'll~~rly-~_o.dqu~~lem )ic.a_n:si.tuate 8
held by this Court thatin a suit for disputed property the burden .·· ·· ,·. .·. ·at Lohem and described m the Land Registry under
to prove title to the land squarely falls on the plaintiff.....; .·.... '. ' ' ' .··. . , !·.·'-'''-'''"
-~",-·
'' No'.f6413, tli'e boundariBs'o(wtiicfi' ah'd
, ... ,_,;- ..• , ..... , ......... " , ' ' • • ·,.-•.·
'other
,• ..•-.......... ,·,
"· ..:· ~· I._.:'.·.:·::·.':'--~·-' .'.~::. ·_". .:~.-· '.-' :~ .,.'.·. '.. :.)·._~.·- :i;__ '·,· ~-·- : . ·'.· ··· . . _,., · - details set out in the·doc.'of.fls. s·are deemed to
·.. · : 17:'The learned cou.nsel fu~her. co.hteri.dE)cj that:the tri~I \ ',,: '. - have"been reprdcfuced'tiereiri ail purpo'ses' of
\:::_:_ . .: ·.'.t:··,1·av~(·~:'" ., ; :·,· .:_· ...··. . -- .. :_- . . :. -. ,, ·. ,,·i_ - .- . ;-·~· ::·.·.: ._ '._ ·. i, ~ ::'. •. \· :-.·· / : ....-... -: . ·c.
for
c court an~ ~lie ffrst appellate court have erroneously discharged
the burden'ofproof as well as the onus of proof orlthe plaintiff· I. ~-.j.-," ·-,-._: . .,,._,,.·.:>- ,_f, ~' " ..... ' -- ; , ..... .: , .;."""'• _,,

appellants fo prove (a) the title to the property or for that matter '. ' 'The'property at issue was always and originally in
(b) that the, same was ancestral •.. byJeferring .to.the written "' ' : ; possession arid ow'nerahip of the judgment'debtdrs
statements of Ter~za .Fernandez and ·recording. erroneous an' '··Tomas'Ferriandes·h1s wire:rereza':Fernandes,
·:>.·,,, · ·:· ·:'saritana •deSiiuza'Jaricf' ilis' wire Conceicao
finding that the)lghts"of. the plail'ltiff was not'disputed ,by' the .
·: 1 ·- Ferrian'des'of Loliern:'' · :: i: i!i:1 -'· . •::: · o
D dete'nda'nts
' · •l< I
an'd, ttie'refore, 'ttie"sain~ amci'urlied lei an
_,., '' : ' '· ·· ·":-" .• ~.· .... · . · ; · ' · .. , ·._.·, .. ,~ ·, i_.l·t,'..' .~. ·• ·. .1 '.•· ' , . , :::;·.-.-:-;:_:"·:·: 'i··;·-. ::.~- ;·,;:,L,(:': :~.-.:.:ti;::d . ;:~;,''!~ ;'i':;:".:;,',',_:\";, ;>\-~.:.:~:.i~:·.>; :·
admi~si.on, In this,regardJhE!,illeadings of the parties become • '.· ;;:The Other defendants, n'~melyth~ oilier appellants stated '
·relevant which have· been 'reproducedo' . at page ,"'1."·anile'impugned ·:. a
., ; •. ~',•'.,
l • ' •.-'; - • ' ..",,,' '.• ·.•

N~g!TI~nt ~nd a pe~sal ~f.Wh!9h.clearly show th.a,t.m~~e .'ff.~~ .a ' ·
·•" -'• ,' ';•,_:i
····••~. .\f• · ..... • C
00
,,.':!;!'
'. : th,U'~~;~:· \•::,:<';,{~ ,,~'-",!'.:, :::··.~o "'. i(":.·, : ' :;,;,'
clear and specific denial of tlie right of the plaintiff over the said . ' - : . 'For n~ither she nor' her husband~ held in
E properiy as well as the 'rigtifof the aricestors 'of the'sald plaintiff;' , ..... ,, I ' .,.,".... P'os'~'es~ion
:.;c: . . . .,. . , ,an',Y...
I ro''e'rt
P... ,, and... .....mtlcli'.. less
P ... ,Y.... , . E
b·y· the ·a'licuon ........i:iurC:tias.er/deferidant
·_. ... ''/ .. ':' . . : ....No.' ·.·r.'· rtie"relevan't. ' ·•·-.··· 'Bcid uealeiri''Jican~No·:1e413 'the' details 'of
''· .. ·~ ·~··"':·-~··'"•·
pleadings regarding the ·claim of. ownership as found on page
· ,.,.,;,;.• .... ,-. . -.,. .,-,.-, ... _,.. ~- -
' '. "
11
fden~ic~tfbri 'o(V...hich 6orrieYbut from Doc'.' of are
~
of
8 the impugned judgment are' elCtracfed below:l \ ' ' r•' u: '.'
; -. ·:·: : 'j . ',' j ,'-
1
~·1 , •.> :~: ,:· •~ \': "; ~ /
. ' .J : '.' •.' .•-.. ·, .' . (I '; ! ; '.l , ! ~ .~ !,.· • ; ·~ . \, .~ :',.ii~ I"'.," • .(. j '· I •
' . : ·_ " "fls~' 5 'and are 'deemed 'to have' been' reproduced
. " • , I . , •1 . , l - ' <' , l ,

. herejn.". · " ,
F :: '~In the village of Loliem there exists a property known as ;~'.,l; ! ·,''._', :" ·· ... ··-. ,·,-• ··,!'" ·. ;.. :·.c·I~::~._,,
: : ,, ,'Bodquealem• Tican'; now described in•the.La:nd Registry .. ,.
:.

1a: It._ ... is
,·!·\;'>.,.··
.

further ..submitted
_ ' " . ,_.._
'·.

that it is settled
>; ;,,.-' , ...... '';'-- .,, ;· --
,:·: .... ''

.. ·
law
.·

that for'a.
-. " ,._,,'
~ .~
F

:,w. of this Judicial Division under No.sixteen thousand four · decree to be p~eed on admission; the admission should be
, ':1~· hundred thirteen (16,413) and which belonged jointly tO deaf arid'im'anibiglious:;ir\ 'this''iegaid relia'iice is placed ttie on
.•.· F.rancisco Fernandes, the father-in-law of the plaintiff and judgment of this. court in oie'S'ets ~'Electricals Lid. ·Jeevan. v.
·G · · :,.,,, hisi brothers, Francisco: Fernandes junior; and . •Pedro JasbirSingh Chadha, (HUF) & ~iir. a Further, he has urge~ that G ..
·:·~:'. Sebastiao Fernandes,\vho all three·tiadbeen.'always so far as the written .statement 1s concerned,.this Court m the ·
. ' · holding possession the property jointly and in equal shares. case, of Rachakonda Ve/1kat Rao & oiS.\i.". R. saiya Bai&
• • • • • • ' • <"-' • • "" ' •
h-ld.th" 't' .... ' :.•,.. -..... · ": ' ........... ... , ,, .- . ' ·. ·•
' . -
5:···'.,..·,c2ooa)
'. ' .
1tscc• aoe.· '" '· . '".' · · . .
. ' .... '! .,_. . ~ ~ :.- ... t <'' { ' • : •. ' .-- ; ' i , ... ·, "·
. · ... · .. · ' ·' ·
-•· • ; ; ' •• , . .
Anr.,8 ,,. e ,.' · ' · a._.,
,. ,-. · ' - · ·......
-.
~ .. ,, .. , ... _
.-.-,
.. ....... . .·:; ...... . ,-. ,.;~. "-· ..
... ,., .....: •. ,,.,,. •:.-•·' · !···,,, ..,
6'. .. c2001) 13 sec 565.
, .. \-.1-,,, .. :.. ~··r·< .;., ·-. "...
'"";"'" ·.r-···".
· · · .. ·
'"":·.~"

•":··,·1 .-.,,...,, ..1
· · · · ··... ·.
~ ... - ~ '····~~,...
f'·r·~·"'·1· ~·.:r•-<
· ·
~ ·'.
• a. c201 O) 6. sec. 501 .. , '. , . ~~ •,; ' l - :. I,,-.,

'.'... .,..._ . H·
.H'. 1.''(2oosrsscc·55s,, .c''' ·: · · '_,; ' ' '·'· 9. (2003H7) S(;C452.i' ' 1
' \ ,, . ~-
. .,,
' ,'., ·"'' ( ,.
'
1092 SUPREME COURT REPORTS · [2013] 11 S.C.R.. SEBASTIAO LUIS FERNANDES {DEAD) THROUGH LRS. v. 1093
t '~ ;"., ~ :-_: ("'-. j '. ··:·.•' ·: '-'. ( l·· K. V.P. SHASTRI
. . . (DEAD)
.
THR.
'.. LRS. [\/.
. GOPALA
. . . .
GOWDA,
. - J,] ' ', ' ' .' - '